Mode's Appeal

The opinion of the Court was delivered by Sergeant, J. Liens on land, which are to bind it in the hands of purchasers, are strictissimi juris. They are cautiously^ prescribed by law, and the modes of entering and continuing*them must be strictly complied with. There is commonly a clash of honest claims, in which some one must suffer, and he to whom the law gives the right, prevails. Notions of equity do not control these conflicts; it is a contest for the right, and each party can insist on what the law awards him, all being innocent and struggling for safety. Hence liens with us are matters of record, which on the one hand the party to be affected must consult, on penalty of loss, and on the other hand, if he does so faithfully, he has acquitted himself of his duty. But what would his condition be, if, on consulting the record, he find the lien satisfied and extinguished, and he is yet to run the hazard of all that may be verbally communicated to him, and is bound to institute an inquiry into every thing mentioned in conversation, and ascertain how far it is well founded, what is the proof of it, what its validity and legal construction, what the amount due, what the circumstances attending an old verbal bargain or understanding between the owner and some former person, that a lien should exist which no law or statute recognizes ? No person could buy, or creditor lend his money, if he is to be affected by such claims. It would tend to create a species of liens on land not to be found in any office or record, nor known to our law, depending on parol proof at any future day from the mouths of witnesses. Here the record showed the mortgages satisfied by the sheriff’s sale and sheriffs deed. It was not in the power of the sheriff or purchaser or parties to keep them alive as mortgages so far as to affect a third person, by any memorandum in the conditions of sale, or understanding or bargain among themselves. It is not like the case of an unrecorded mortgage or deed; it is the case of a mortgage extinguished — in fact, no mortgage at all, or at most a parol mortgage. Now certainly it is well settled that two parties cannot by their private agreement create a parol mortgage which shall have the legal effect of a mortgage by reason of verbal notice to creditors or purchasers. This would overthrow the recording Acts and the Acts relative to judgments and other liens. It would be inconsistent with the whole tenor of our decisions, contrary to the settled policy of the Legislature, and productive of infinite peril to landholders and creditors, and of strife and uncertainty to the community. In Kauffelt v. Bower (7 Serg. & Rawle 64), and Bear v. Whisler (7 Watts 144), it is declared that [285] even a vendor who has executed a deed has no lien for the purchase money as against subsequent judgment creditors with notice. It was unnecessary, therefore, to inquire into the alleged notices to the creditors by verbal communications informing them that Kelty bought subject to these mortgages. If it were made out, it would avail nothing, as it was not in the pow'er of the parties to revive and keep on foot an expired mortgage, so as to affect third .persons as a lien whether purchásers, mortgagees, or creditors, even admitting that w.hat had occurred before was sufficient, as to Kelty, to estop him. Judgment affirmed.